Standing Committee B

[Mr. Derek Conway in the Chair]

Enterprise Bill

Clause 126 - Questions to be decided on market investigation references

Amendment proposed [1 May]: No. 306, in page 92, line 44, after `services', insert— 
`(iii) improvements to production or distribution; or 
 (iv) promoting technical or economic progress'.—[Mr. Djanogly.] 
 Question again proposed, That the amendment be made.

Derek Conway: We were debating the amendment when we adjourned on Thursday. Mr. Lansley was just about to sit down when I suspended the Committee, so unless any other member of the Committee wishes to speak, I shall call on the Under-Secretary to reply to the debate.

Melanie Johnson: As you have just said, Mr. Conway, at the end of our previous sitting, the hon. Member for South Cambridgeshire (Mr. Lansley) suggested that the amendment should be adopted because it would bring the wording of subsection (8) into line with article 81(3) of the EC treaty. I shall explain why the clause has not followed the drafting of the article.
 It is common ground in the Committee that while, by and large, firms are more efficient and customers are better served when the markets are more rather than less competitive, circumstances arise in some markets in which an aspect of the market structure or conduct that has an adverse effect on competition nevertheless gives rise to economic benefits that offset prevention, restriction or distortion of competition. 
 The question raised by the amendment is whether the alternative drafting approach under article 81(3) would be a more effective or appropriate way of making allowances for such "countervailing benefits" in the context of market investigation than subsection (8), as presently drafted. The White Paper stated that the article 81(3) criteria reproduced in the amendment were broader than the set of customer benefits that we have adopted both in the clause and for merger investigations and, in one sense, that is true. The two sets of criteria are fundamentally the same. 
 I can reassure Conservative Members about any benefits that accrue from improvements in 
 production or distribution, or in technical or economic progress, are passed on to customers in a United Kingdom market, not just in the market concerned. Those benefits can be in the form of lower prices, higher quality or greater choice of goods or services, or greater innovation in relation to such goods or services that already fall within the subsection (8) definition of customer benefits, provided that they fall within the criteria under subsection (8)(b) that the benefit has accrued or may be expected to accrue within a reasonable time and that it is unlikely to accrue without any aspect of market structure or conduct concerned. 
 Conversely, if benefits in improvements, production or distribution arise from aspects of market structure or conduct and have an adverse effect on competition that do not fulfil the criteria set out in subsection (8)(b) or which are not passed on to customers, we would not fulfil the requirements of article 81(3) either. Article 81(3) requires, for example, that customers must enjoy a fair share of the benefits of improvements in production or distribution if an exemption from an article 81 prohibition is to be granted. Thus, although article 81(3) and clause 126(8) are drafted differently, their aims are essentially the same. Given that we are not out of keeping with the spirit of article 81(3), we see no advantage in following it to the letter because the market investigations under article 81 do not have the same focus. Article 81 is concerned with agreements and arrangements consciously entered into by competitors; market investigations are concerned mainly either with structural competition problems or with parallel, but non-collusive, conduct by competing firms. 
 Moreover, unlike chapter 1 of the Competition Act 1998, the market investigations regime is not based on European Union law and there is no more reason for us to adopt the concepts from article 81(3) than there would be for us to use the European Commission merger regulation dominance test under part 3 of the Bill rather than the substantial lessening of competition test which, as members of the Committee know, we have already chosen. I hope that I have answered the question of the hon. Member for South Cambridgeshire about why we have so drafted subsection (8) and not done so in the terms of article 81(3) and that, as a result, the amendment will be withdrawn.

Jonathan Djanogly: We have argued why the provision should be aligned with the Competition Act 1998 and article 81. I thank the Under-Secretary for explaining why the provision is not out of keeping with article 81. However, she acknowledged that there are differences.
 As my hon. Friend the Member for South Cambridgeshire said last week, on consultation, the majority of businesses said that they thought that an article 1-type approach would be most appropriate. However, I appreciate the fair point that the Under-Secretary made about the fact that we are dealing with structural issues, which is not the article 81 
 approach. I am concerned that there has been some confusion about the difference in the approaches taken to the competition issue and the consumer law provisions of the Bill. It would have been nice to have had the time to discuss those issues when we considered the consumer law provisions; however, we did not. 
 I am concerned that we are considering current, rather than future, consumers, as would be more appropriate in a competition debate. There is a risk that if we ignore the proposed amendments, a short-term approach will be taken, rather than the more strategic approach that we argued would be more relevant to the competition provisions. However, I have listened to what the Under-Secretary said, and beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Clause 126 ordered to stand part of the Bill.

Clause 127 - Variation of market investigation references

Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: The Competition Commission must end its investigation within two years. That is a long time for a business to undergo an investigation, given the investigation's impact on costs, the potential fall in the company's share price on the stock market and other impacts caused by market uncertainty as to where the business is heading. In particular, foreign competitors who are not bound by the investigation may take over a company's activities while it is subject to an investigation and is stuck in a rut.
 Let us imagine that, after one year, the Competition Commission says, "We have got it all wrong. We've been barking up the wrong tree for the past year. I'm sorry that your share price fell, that a foreign company has taken away your business and that, as a result, jobs that would have been made available in this country have gone abroad." That could happen, given the possibility of a variation. What if the Commission then says, "Okay, we got that wrong, but we've considered it a bit further and have decided that we investigated the wrong thing. We are going to restart the investigation, but this time we will consider a different set of criteria."? 
 I am sure that we all appreciate that businesses might be fearful of such circumstances arising; of not knowing what was going on, of not being able to plan and of having their strategy turned on its head. They might worry that their share price would be re-affected by the terms of the new investigation. Under the variation provisions of the clause, there is a great possibility that businesses will be dramatically affected. 
 Can the Under-Secretary give business some comfort about how the variations will happen? 
 What remedy would business have if a variation were called? Would business be able to complain if, after a year, the investigation failed? In those circumstances, it would be unfair to be suddenly faced with a whole new set of guidelines. 
 Will there be a limit to the number of investigations that could be carried out, or can the Commission change the rules of the game as it goes along, willy-nilly? We shall discuss the cost of the investigation later on in our proceedings. In the meantime I would be interested to hear the Under-Secretary's views.

Melanie Johnson: Perhaps I can reassure the hon. Gentleman. The point of the statutory timetable is to give certainty to business. There is real value in having such a timetable because it provides a full stop to proceedings and it is important that that is not undermined. Of course, variations could narrow as well as broaden the scope of a pre-existing inquiry; the hon. Gentleman assumes that it would always be broadened. The amended reference will build on work already done by the Competition Commission; a new inquiry will not be started. In fact, clause 161 requires that parties be given time to comment. It is unlikely that the reference would be varied significantly late in the day, as the Competition Commission would not have enough time to complete its inquiry, especially if it was to be broadened.

Mark Field: Will the Under-Secretary confirm that under no circumstances would the clock be turned back to zero with the two-year timetable effectively starting again? That key concern was mentioned by my hon. Friend the Member for Huntingdon (Mr. Djanogly) and it obviously would be a concern for businesses if the uncertainty were to hang over them for a long period.

Melanie Johnson: I can assure the hon. Gentleman that I do not envisage any circumstance in which the clock would be turned back to zero during the process. The decisions taken must be reasoned, and any decision to vary a market investigation would be open to appeal by the Competition Appeal Tribunal. I accept that questions raised by the Opposition on the matter are utterly reasonable, but I would argue that the clause and related provisions already meet all of their objectives.
 Question put and agreed to. 
 Clause 127 ordered to stand part of the Bill. 
 Clause 128 ordered to stand part of the Bill.

Clause 129 - Time-limits for market investigations and reports

The amendment seeks to reduce the period set out in clause 129. Opposition Members accept the value of certainty to which the Under-Secretary referred a 
 few moments ago; there should be some certainty about timetables. Equally, there are other concerns, although again, I am covering ground trodden upon only a few moments ago by my hon. Friend the Member for Huntingdon, when he referred to the damaging effect on business of uncertainty. The burdens on business extend beyond the professional fees and senior management time expended in examining market investigations. 
 I accept the need for such investigations, and all will have a downside. However, one problem is that they will end innovation, especially in relation to product development. It is easy to see how key players within a market that is being investigated would see little sense in developing products. In the medium term, that would reduce choice and, possibly, value for consumers, depending upon the nature of the market in mind. 
 Once again, we have received advice from the CBI; that should wake everyone up. We await the presentation of similar advice from the Transport and General Workers Union to enable us to include any amendments that it suggests. However, the CBI has made reference to the fact that the Competition Commission has shown that it is able to handle complex monopoly issues within nine months. 
 I appreciate that we are not treating like entirely with like, but if such complex monopoly issues can be determined within one year, it would be sensible to halve the timetable for the deadline that the Under-Secretary has in mind from two years to one year. 
 I seek guidance as to why the two-year timetable has been put in place, and whether there is any evidence that going well into a second year is likely to be necessary, given the sorts of cases that might arise as a result of this clause.

Jonathan Djanogly: I support the amendment. Two years is too long; 12 months would be more appropriate, as that is the cycle of one trading year. My hon. Friend the Member for Cities of London and Westminster (Mr. Field) has mentioned the risk to companies during the more lengthy period, so I will not go over that again.
 Subsection (3) allows the Secretary of State to reduce the period from two years, but that is looking at the matter the wrong way round. It would be better to start off with a shorter period—for example, twelve months—and to allow the Competition Commission to apply for extensions on a case by case basis. That would be fairer, and would allow the realities of each individual situation to be addressed in an appropriate manner as time goes on.

Alistair Carmichael: Further to what the hon. Member for Cities of London and Westminster said, I have received a briefing from a very distinguished trade union—a closed shop, in fact—known as the Law Society, which indicates that it also supports the amendment.
 It appears that our colleagues in the Law Society are also prepared to go to the barricades on this matter. As the hon. Gentleman said, the Law Society's point is that the majority of complex monopoly investigations can be handled within nine months. In my experience, if such investigations are allowed to take two years, it is likely that, henceforth, they will take two years. 
 Subsection (4) limits any orders, so that they can vary the period only to two years. With regard to that, there is not a consequential amendment, so I presume that somebody clever at the Law Society has thought that they can keep the possibility of an extended period. As the hon. Member for Huntingdon said, allowing extensions on a case by case basis makes more sense than the blanket provision.

Melanie Johnson: I do not for a moment expect that the majority of market investigations will take the Competition Commission two years to deal with. This provision is a long stop; it is not an assumption of an average time, or the likely time or even the time that exceptional cases might take.
 By way of comparison, Opposition members talked about monopoly inquiries. Over the past four years, these have taken the Commission 13 months, on average, from the date of reference to the publication of report. Therefore, twelve months would reduce that period. Of course, that is not an exact precedent, and I accept the points made by Opposition members because there will be differences between market investigations and monopoly inquiries, but I can see no reason why the average market investigation should take twice as long as the average monopoly inquiry. 
 I share the concern of Opposition Members that market investigations should not take any longer than they have to, especially as it is clear that they place burdens on the businesses that are under investigation. The statutory maximum is a long stop, rather than a norm. For each inquiry, the Competition Commission will set a detailed administrative timetable as soon as possible after the reference is made. If an inquiry does not warrant a two-year investigation—I do not expect that most of them will—that will be reflected in the administrative timetable, which will be published early on. However, the fact that many investigations can and will be conducted in less than two years does not justify the amendment—notwithstanding the support for it from that well-known militant trade union, the Law Society—because it would impose on the Competition Commission a statutory maximum that is shorter than the average length of current monopoly inquiries. In other cases, the amendment would destroy the Competition Commission's ability to conduct a market investigation effectively. 
 We want a predictable framework so that people know what length of time inquiries are likely to take. We cannot tell at the moment, but we know that, like monopoly inquiries, the inquiries will often involve 
 enormous quantities of data, complex legal, regulatory and economic issues, and many parties. We believe that it would be dangerous to set the initial statutory maximum at less than two years, although I emphasise that we hope that most investigations will be concluded in a considerably shorter period. 
 Obviously, as hon. Members suggest, in the light of new experience, it might be appropriate for the Secretary of State to exercise her power under subsection (3) to reduce the statutory maximum. We want a quality process that fits. We are dealing with a horses for courses situation, and the time frame needs to be right for each investigation. In the final analysis, fairness is more important than speed. We believe that our proposal strikes a proper balance between thoroughness and urgency. I hope that I have persuaded the hon. Member for Cities of London and Westminster to withdraw the amendment.

Mark Field: I confess that I remain uncomfortable with the limit. The Under-Secretary provides some comfort and says that, all too often, the investigation will not take two years. However, there is a danger in any bureaucracy of an instinctive mentality. Once an investigation starts, those involved will know that they have two years, notwithstanding the provisional timetable to which the Under-Secretary refers. The mentality may be that they have 24 months, and, therefore, things will drag on for a prolonged period.

Melanie Johnson: The hon. Gentleman does not seem to be taking on board my point about early timetabling of the conduct of the inquiry, which will provide the timeframe within which the entire investigation will take place.

Mark Field: I appreciate that, but the early timetabling will take place within the confines of the two-year maximum, however much we try to introduce a discipline in timetabling.
 Is any guidance provided with respect to the nine-month timetable for monopolies inquiries? If most such monopoly investigations take seven or eight months—in other words, nine months provides a strict discipline—that suggests having a lesser timetable, rather than merely relying on the fact that the two years is a long stop and that the investigation may take less time.

Jonathan Djanogly: What if the commission asks for a variation, and the original timetable goes out of the window? The company involved would be in a much worse position.

Mark Field: Yes, there would be a concern, notwithstanding the initial timetabling plan, that a variation would throw out the timetable. However, the Under-Secretary encouraged us earlier when she said that in no circumstances, notwithstanding a variation, would the entire investigation take more than two years, on the basis that the clock would not be put back to zero.
 We are uncomfortable with the proposal. We have all made our comments fairly plain, and I hope that the Under-Secretary will give the matter some thought. I appreciate that provision has been made for her to consider reducing the timetable once the Bill is up and running and in view of investigations that have taken place. 
 I hope that plenty of attention will be brought to bear on the matter. It is important not simply in terms of the awkwardness involved for a company that is subject to a market investigation. The provision runs counter to the intention behind the Bill and may lead to less innovation and, therefore, less customer value.

Melanie Johnson: I am listening carefully to Opposition Members. However, for the many reasons that I have given, they are failing to alarm me. In addition, in respect of monopolies investigations—about which there was a further question—there is no outer limit under the current regime. The Office of Fair Trading, or the Minister making a reference, sets the Commission a deadline for producing its report, which is typically between nine and 15 months. However, nine months is quite unusual and has been given on only a couple of occasions. It is parallel to the provision that will exist for a timetable to be published setting out the new arrangements. Overall, the fact that there has been no outer limit has not led to the inquiries being conducted over a long time.

Ken Purchase: Does my hon. Friend accept that companies could be of great help to themselves if they approached the Office of Fair Trading inquiry in an open and transparent way, rather than introducing the complicated obfuscation that frequently accompanies OFT inquiries and prolongs the work unnecessarily? As the hon. Member for Cities of London and Westminster suggested, that sometimes prevents product development. Does my hon. Friend accept that companies may help themselves in those matters?

Melanie Johnson: I certainly agree that companies can, and should, help themselves. Unfortunately, as everybody would accept, there are occasionally complex situations that require complex information. That is the reason, as I said earlier, why the 12-month long stop is untenable. I want to re-emphasise the fact that a nine-month period is very unusual, 15 months is not common and 12 months does not seem to be sensible. We are committed to ensuring that investigations are completed in a good deal less than 24 months and we have the power to vary that if we need to. We are talking about a quality process and that is why we want to get the balance right. We do not want to curtail investigations that involve complex data and analysis of incoming information. We do not want to carry out a botched-up job by imposing a 12-month period. I hope that Opposition members will understand that—although we are coming from a similar position in terms of what we want to achieve and
 the period in which we would envisage that normally being achieved—the decrease in the time limit would not be sensible.

Mark Field: This has been a worthwhile debate. I am assured by the Under-Secretary that attention will be paid to the time limit if it were believed to have deleterious effects on business. I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 129 ordered to stand part of the Bill.

Clause 130 - Duty to remedy adverse effects

`(7) In the event that the Commission decides that no remedial action needs to be taken following a market investigation, it shall reimburse the costs and legal expenses of the undertaking which have resulted from the investigation'. 
I appreciate that there will be many economic indirect costs that are not reclaimable in any sensible way. By using restrictive wording, which focuses on cases in which no remedial action is required after investigation, we would not disincentivise the OFT from making reasonable inquiries into markets.

Ken Purchase: It concerns me that amendments demanding payment for investigations should have been tabled. I accept that an investigation may ultimately show that there were no problems with a company. However, the Conservatives are suggesting that the taxpayer should foot the bill for proper inquiries into industrial monopolies, anti-competition and so on. That could lead to considerable costs. Their method of probing the Bill is to suggest that the OFT will act capriciously on almost every occasion. In past sittings, I have noted the number of times that the Conservatives have concocted circumstances in which there will be capricious action by the OFT.
 In many cases, it is fair enough to probe and to try to understand the Bill's intention and effects. However, it is an amendment too far to call upon the taxpayer to pay for investigations that turn up blank and give a company a clean bill of health. The 
 Under-Secretary should rebut that idea as quickly as possible. It is not the Committee's duty to impose additional costs on the taxpayer.

Jonathan Djanogly: It is, of course, correct that there should be investigations, and that the Competition Commission should have effective remedies to prevent an adverse impact on competition. However, we must realise that even when no remedial action is required after an investigation, a company will still have suffered costs, and will have spent a lot of management time on the issue. Its share price may have been affected. It may also have lost jobs, because a foreign competitor might have acted while the company stalled. Companies could be affected in many ways.
 The hon. Member for Wolverhampton, North-East (Mr. Purchase) made the point that the public should not pay companies' costs but, in other cases, that is the case. The example that immediately comes to my mind is taken from my time on a planning committee. I remember that, frequently, when we were considering turning down an application that the officers had recommended for approval, the officers would say, "If you turn this down, the decision will be appealed, and costs will be awarded against the council." Under the hon. Gentleman's argument, one might say that that should not be allowed. However, it is allowed; quite rightly, too, because it puts in place a discipline. Public bodies, and those who serve on them, should be just as disciplined as companies or anyone else. That is what we are trying to say through the amendment. 
 With all due respect to the civil service, its members are paid to do their jobs, and the more creative they are and the better they are at their jobs, the more likely they are to find possibilities for referral. There should be a balance. Just as in my local government example, when a decision is made, the Minister concerned or the Competition Commission should realise that costs might be awarded against them if they were to take an action and lose it. I support the amendment because it seeks to achieve a fair balance.

Melanie Johnson: I do not believe that the amendment seeks to achieve a fair balance.
 We acknowledge that market investigations can be time-consuming and costly for the parties concerned, but the proper application of competition law ultimately benefits businesses and consumers. I should correct a possible misapprehension; if a market investigation concludes without any remedial action being taken that should not be taken to mean that it was all a big mistake, which seems to be an underlying assumption of Conservative members.

Jonathan Djanogly: The Under-Secretary makes a fair and important point; such an investigation might serve the public interest by raising significant issues, and connected matters. However, a different point is being made here. Should the company have to pay for that public benefit?

Melanie Johnson: I understand the point that is being made; it is obvious.
 Under certain circumstances, although the Competition Commission might find serious competition problems, it might not be reasonable or practicable to impose a remedy, for a variety of reasons. The Competition Commission will not spend its time undertaking frivolous investigations, and I take on board the point that my hon. Friend the Member for Wolverhampton, North-East made so well.

Gareth Thomas: A parallel can be drawn with the actions of the police. They might investigate a company but decide not to take remedial action against it, such as to take it to court. In such situations, we do not ask the company to pay the costs of the lawyers whom it has appointed to deal with the police investigation. That is another reason to reject the amendment.

Melanie Johnson: Indeed. My hon. Friend is right to support the remarks of my hon. Friend the Member for Wolverhampton, North-East. There are several reasons why it would not be a good idea to accept the amendment.
 The OFT has a duty to use its reference powers in a reasonable manner, and it will issue guidance on how it plans to use them. As I have said, in the unlikely event of the OFT using its powers unreasonably, unfairly or illegally, or basing a reference decision on material errors of fact, aggrieved parties will be able to apply to the Competition Appeal Tribunal for a review, and to seek to quash a reference decision. In situations in which the OFT's suspicion of competition problems in a market are reasonable, but the Competition Commission finds that that is not the case, the Competition Commission's investigation is unlikely to be long or costly. 
 Committee members might be interested to learn that only once has such an investigation led to a finding of no harm; an investigation into Scottish estate agents. Although it led to a finding of no harm, the investigation had merit and the public did not jump up and down and say that taxpayers' money should be paid to Scottish estate agencies as a result of that single instance of the finding of no harm.

Jonathan Djanogly: In circumstances where an issue is appealed to the Competition Appeal Tribunal, will that tribunal be able to award costs?

Melanie Johnson: It would be possible to appeal against the decision of the Competition Commission, but it is unlikely that the costs of the appeal would be recovered, just as that would be unlikely with regard to an aggrieved party in a planning case. The parallel that the hon. Gentleman drew with planning applications was not terribly persuasive, given that, in his case, members turned down the advice of officers of the council, which is usually powerful and technical, in my experience. In such cases, there can be no parallel. There are
 other aspects of disjointedness between the parallel that the hon. Gentleman seeks to make and the present situation. 
 The costs awarded would only cover those incurred in bringing the appeal itself when the appeal finds against the parties. We are striking the right balance, as my hon. Friends clearly agree. It would be wrong to accept such a course of action because there would be an incentive for parties to gold-plate their legal cover, which would lead to a massive increase in the overall costs of an investigation. 
 It could be perceived that the Competition Commission had a natural bias against deciding that no remedial action was taken in a market, potentially leading it to impose unnecessary remedies as a way of avoiding paying parties' costs. All of that would be unattractive. We have the right balance; the one most commonly struck, as some of my hon. Friends have said. I urge hon. Members to reject the amendment.

Mark Field: We have had a debate and, clearly, the Under-Secretary will not budge to any great degree. I was not impressed by the comparison made by the hon. Member for Harrow, West (Mr. Thomas) in relation to the police force. There are strong differences between a criminal investigation and the nature of Competition Commission investigations, not least because of the whole issue of compromise and openness to which we have already referred.

Ken Purchase: Does the hon. Gentleman agree that the direct comparison made earlier between planning and OFT law is also odious, because planning law is based upon the premise that one must have a presumption in favour of the applicant?

Mark Field: My hon. Friend the Member for Huntingdon was a councillor in Westminster prior to entering Parliament. My own background was in the London borough of Kensington and Chelsea. I sat on planning committees for several years, and debates took place in which strong pressure was brought to bear by the planning committee upon members of the planning department. I speak from the basis of one who has little time for planning professionals; I have never been terribly impressed by the advice given. We should draw a veil over the issue of planning before I am ruled out of order. Suffice it to say, with great respect to my hon. Friend and to the hon. Member for Harrow, West, I suspect that neither example was other than a cul-de-sac in relation to the matter at hand.
 I am comfortable about withdrawing the amendment, although the debate about it was deliberately narrowly focused. There were few instances in which no remedial matters were brought to bear. Indeed, the Under-Secretary had only one example, which related to Scottish estate agents, in which a fully-fledged market investigation resulted in no remedy being required. 
 It would be sensible for the Under-Secretary to reconsider the matter, and we will no doubt revisit on 
 Report the question of costs imposed upon business. The amendment was couched within a very narrow focus, although I accept the concern that somewhat cosmetic remedial suggestions may be made in order to by-pass the point about costs.

Tony McWalter: Does the hon. Gentleman accept that his amendment may have been more suitable if the action taken by the OFT was malevolent, as it were? That would give rise to an issue about compensation.

Mark Field: I sincerely hope that there would be no question of frivolous or malevolent intent from the OFT, not least because there will be such strong ministerial control that there is no chance of such a thing happening. On balance, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Jonathan Djanogly: I want to speak a little more about the clause as a whole and subsection (3), in particular. It starts off well, but then goes rapidly down hill. It states:
"The decisions of the Commission ... shall be consistent with its decisions as included in its report". 
I should be grateful for the Under-Secretary's comments on some points. First, what would be material in such circumstances? Secondly, the circumstances of the company may be such that the causation is beyond its control. Would that make a difference? Thirdly, would any change to the Competition Commission's decision be only to take no action or less action, or could it decide to take more action? If it took more action—action that would be tougher on the company concerned—would the company be asked for its input or be able to comment on the altered circumstances that led to a change in the commission's decision? Could the company take that change of mind to the CAT as an issue in itself? Finally, can the Under-Secretary elaborate on what constitutes special reasons? Is she or her Department planning to issue guidance on the matter?

Melanie Johnson: The hon. Gentleman is particularly exercised by subsection (3). As he said, it requires that, unless there has been a material change of circumstances or a special reason for the Competition Commission taking a different course of action, its action must be consistent with its report on a market
 investigation reference. The clause specifies that the Competition Commission should achieve as comprehensive a remedy as is reasonable and practicable to the adverse effect that it has identified and any detrimental effects on customers that arise from it. 
 As I explained when discussing clause 126, effectively, the provision creates a presumption in favour of directly remedying the adverse effects on competition, though it does not mean that the Competition Commission cannot implement a remedy that completely removes the detrimental effects on customers over one that only partly mitigates the adverse effect on competition. It also means that the Competition Commission must consider whether the adverse effects that each remedy is designed to address are sufficiently serious to justify the costs of implementing that remedy. 
 As I said, the Competition Commission still has a duty to consult on a new remedy if the change is significant, and that process will take time. For example, the market could change between the publication of the report and the finalisation of the remedy.

Jonathan Djanogly: If the change were due to the marketplace, as the Under-Secretary has described, rather than due to the company or because of its action, why should it necessarily suffer as a result of circumstances that were beyond its control?

Melanie Johnson: Any change will still be subject to reasonable and practical requirements. The company would be consulted, and circumstances could vary in either direction—the hon. Gentleman assumed only one direction. However, regulations or laws that cause a competition problem might take something beyond a company's control, so there might be reasons for new remedies.
 I am sure that the hon. Gentleman does not want to deprive business or the Competition Commission of appropriate flexibility in responding to changes in circumstances. Indeed, the point of the provision is to specify that the commission may have regard to any customer benefits in any UK market—not only the market involved—which arise from features of the market that have led to an adverse effect on competition. To do so, it must be confident that the benefit has been accrued partly or wholly as a result of the feature or features involved and that it may be expected to accrue within a reasonable period. I hope that I have reassured the hon. Gentleman that in some circumstances the provision is appropriate and that, therefore, the clause should stand part of the Bill.

Jonathan Djanogly: I am not wholly convinced. When is such a provision likely to be used, in particular that which refers to when the commission otherwise has a special reason? Clearly, that could mean anything. Does the Department intend to consult or issue guidance on that, or will that be based on precedent
 to date? It would be helpful if the Under-Secretary expanded on that.

Melanie Johnson: We do not propose to consult on the circumstances and reasons. I sketched out several examples of circumstances in which the provision may be necessary. There are reasons for the provision to do with causation beyond control. I have given illustrative examples. We cannot give a definitive list, and it would be foolish to do so. That is probably what the hon. Gentleman is trying to tempt me to give. I hope that the illustrations that I have given meet the point about the sort of circumstances in which we envisage the provision operating.

Jonathan Djanogly: I hope that the Under-Secretary understands where I am coming from. At the end of two years, when the Competition Commission is in the process of deciding what to do after a long investigation, the company merely wants to know that there will be certainty and that, after a two-year report, the Competition Commission will not merely turn around and say that it has special reasons in the circumstances. I asked for an elaboration of what might constitute special reasons. The Under-Secretary has not suggested what might constitute special circumstances. I am asking not for a specific case study but merely an indication of what might lead to special reason and, therefore, indecision and uncertainty for business.
 Question put and agreed to. 
 Clause 130 ordered to stand part of the Bill. 
 Clauses 131 and 132 ordered to stand part of the Bill.

Clause 133 - Questions to be decided by Commission

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: I tabled amendments Nos. 308 and 309 to clause 133 because it seemed to us as though a draftsman's error had been made in two respects. I hope that they are reasonably clear. Amendment No. 308 would have inserted a reference to the definition in clause 126(2) after the words "adverse effect on competition", while amendment No. 309 would have inserted a reference to a different subsection of clause 126 after the phrase "customer benefits". The clause appears to contain no definition of "adverse effect on competition" or "customer benefits".
 My initial instinct was that there had been a draftsman's error or oversight, but it is conceivable that there is a more sinister reason. This part of the Bill deals with public interest cases, and the draftsman may have thought that, if the definitions were left up in the air, then so be it. The Under-Secretary is shaking her head, so clearly the interpretation of something more sinister is not 
 right. In that case, she is welcome to leap to her feet and accept my amendments with alacrity and joy.

Melanie Johnson: Perhaps I should intervene on the hon. Gentleman if he intends to continue at length, because the conspiracy view of history is seldom right. I hope that I can delight him by saying that the amendments make similar points to that made in amendment No. 304, which was accepted last week by my hon. Friend the Minister. I am grateful to hon. Members for raising the issue. We want to ensure that the Bill is improved where necessary, and I will give further consideration to their suggestions with a view to tabling drafting amendments on Report. I support the reasons given by the hon. Gentleman for proposing the amendments but, none the less, I ask him to withdraw them.

Nigel Waterson: I am almost overwhelmed. The Under-Secretary has been good enough to confirm that the conspiracy theory is wrong, so the reason must be the alternative, which I would not dream of mentioning in mixed company. I am delighted that we have found some gaps in drafting, and equally delighted that she is prepared to take them on board. It would be utterly churlish of me not to withdraw the amendments immediately.

Derek Conway: Order, as the lead amendment has not been moved, it is not necessary to withdraw it.

Andrew Lansley: In order to understand clause 133 better , I want ask some questions of the Under-Secretary. I confess that I am non-plussed. One does one's best to follow the drafting, but on this occasion I have lost it.
 The explanatory notes make it clear that clause 133 is intended to enable the commission to decide the issues in a market investigation case. We are dealing with such a case, where a public interest intervention notice has been served. The explanatory notes suggest that the Competition Commission should have to consider not only the same questions as it would have considered under clause 126, where there was no public interest element, but—in addition to issues about a competition-only market investigation—what course of action would be appropriate in the light of any relevant public interest considerations. That is fine. I understand that we are dealing with a public interest element, but the structure of the clause suggests that the question to be decided by the commission is simply whether there is an adverse effect on competition. There is no other reference. 
 Clause 141 deals with when the Secretary of State has had the matter referred with an adverse effect on competition, but has not taken a decision and it reverts to the commission. However, no particular considerations that should be decided by the commission are specified. It seems to me, on the face of it, that the only issue is whether there is an adverse effect on competition—in which case, under this group of clauses, the matter is referred to the Secretary of State for a decision. 
 It is also unclear to me whether the Competition Commission is required to decide whether there is an adverse effect on competition, bearing in mind the public interest considerations, and if there is such an adverse effect, which questions have to be decided by the Competition Commission on referral to the Secretary of State. That seems to be entirely a matter, subsequently, for the Secretary of State. 
 I conclude with a question, on which the matter rests. If the Competition Commission decides that there is no adverse effect on competition but—for the sake of argument—the Secretary of State has issued an intervention notice on a national security consideration, where is it reflected in the clause that the Competition Commission must look to that national security consideration, and if it believes that there is a relevant public interest that should be subject to a decision by the Secretary of State, will so refer the matter rather than simply saying, "There is no adverse effect on competition," and publish a report? No question in relation to public interest is specified in the clause.

Melanie Johnson: The hon. Gentleman raises a question about how the clause works, and how it relates to other clauses. The clause states that the Competition Commission must consider the case, in the light of the issue, in the intervention notice. The clause simply refers to the action by the Secretary of State under clause 139, thereby taking account of the public interest issue. Those are the terms in which the Bill is drafted.
 I am unsure which bits of the clause the hon. Gentleman is especially confused about, but I draw his attention to the fact that subsection (4) requires the Competition Commission to decide the same questions with regard to action to be taken where a report delivered to the Secretary of State under the public interest provisions reverts to the Competition Commission—that is, where the Secretary of State has failed to take a decision within 90 days of the receipt of a report from the commission—or where the Secretary of State decides that there is no public interest consideration that should be weighed against the competition issues identified by the commission. 
 I hope that that explains the nature of the clause, and what it does.

Andrew Lansley: I confess that it does not. Let me try to be a bit clearer: I understand that if the commission finds that there is an adverse effect on competition, it refers the matter to the Secretary of State. However, if it finds that there is no adverse effect on competition, but an intervention notice with a national security consideration may be relevant, does that mean that the Competition Commission simply says that there is no adverse effect on competition—that the national security consideration is not a competition effect—and then publishes its report? Subsequent clauses would suggest that, under those circumstances, no remedy is available to the Secretary of State.

Melanie Johnson: The hon. Gentleman is getting quite technical. I have listened carefully to the points and questions that he has raised, and I think that it would be most helpful for me to offer to write to him with regard to them.
 Question put and agreed to. 
 Clause 133 ordered to stand part of the Bill. 
 Clauses 134 and 135 ordered to stand part of the Bill.

Clause 136 - Time-limits for investigations and reports: part 4

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: I rise briefly to probe the Under-Secretary on a couple of matters with regard to this clause. The first echoes the previous debate about the two-year limit. My hon. Friends the Members for Huntingdon and for Cities of London and Westminster have made all the important points about that, and about the real problem that is caused to businesses by such uncertainty hanging over them for up to two years. It appears that that issue does not cut any ice with the Under-Secretary or her hon. Friends, but it remains a concern. At least there is a suggestion of movement in the clause.
 Under subsection (2), the Secretary of State has the power to 
"alter the period of two years".

Melanie Johnson: The hon. Gentleman's points chime well with those I made in debate on clause 129 when we discussed amendment No. 35, which would have reduced the period to 12 months. I have said that we do not normally expect the process to take anything like two years; that is a long stop. I also said that there is a provision to vary the period downwards, as the hon. Gentleman says. Those points, which I made in relation to amendment No. 35, obviously hold true in our discussion on clause 136. I do not have a great deal to add, but I reassure the hon. Gentleman that he is right in what he says, and that our intentions are no different to his own on the subject.

Nigel Waterson: Again, we have an assurance that the Under-Secretary's intentions are entirely honourable. Who am I to argue with that?
 Question put and agreed to. 
 Clause 136 ordered to stand part of the Bill. 
 Clauses 137 and 138 ordered to stand part of the Bill.

Clause 139 - Remedial action by Secretary of State

Question proposed, That the clause stand part of the Bill.

Andrew Lansley: At the risk of being technical, I should like to be clear on a point that bears on the clause. My reading is that if the Competition Commission decides that there is no adverse effect on competition, we do not reach the provisions under this clause, and the Competition Commission simply publishes a report. However, if the commission concludes that there is an adverse effect, the report is put in the hands of the Secretary of State, who may take such decisions as flow from it.
 It is interesting that the power provided on market investigations in which a public interest intervention notice is served is not simply the power to vary the remedies proposed by the Competition Commission in the relevant public interest. It is a wider power to decide which remedies should be taken, and the Secretary of State need only "have regard to" the commission's report. The only constraint on the Secretary of State is that, if the Competition Commission decides that there is an adverse effect on competition, the Secretary of State cannot decide that there is not. So far as I understand, the Secretary of State is otherwise free to vary any or all the remedies proposed for dealing with the "adverse effect on competition" or the "detrimental effect on customers". 
 I make that point in a stand part debate because I think that it would be far better if the whole clause were rewritten to make it clear that the Secretary of State should follow the advice of the Competition Commission on the effect on competition and how it is to be remedied. I would make changes to the clause as are required in relation to the public interest raised by the Secretary of State. 
 There are two dangers, perhaps the most obvious being that the Secretary of State will find it tempting to substitute his or her judgment for that of the Competition Commission on how competition effects should be dealt with. Secondly, I refer to the Secretary of State's temptation to find a relevant public interest consideration at any stage up to four months after a market investigation has been initiated. Having served an intervention notice on any public interest consideration that can be specified, the Secretary of State brings the whole of the subsequent process of determining all the remedies into his or her own hands. That is inherently undesirable because consistency and predictability of independent competition authorities require that the process be conducted 
 independently. The more that public interest intervention notices are served—especially if they are specified for consideration other than for national security—the more that remedies will be put back into the hands of the Secretary of State and not the competition authorities.

Derek Conway: Before I call the Under-Secretary to reply, I emphasise that we are discussing clause 139.

Melanie Johnson: Indeed, Mr. Conway, I am happy for the hon. Member for South Cambridgeshire to become technical, and delighted that he is getting stuck into the detail of the Bill. If there were no adverse competition finding, the Secretary of State could only mitigate or eliminate the competition remedy on the relevant public interest grounds. If there were no adverse competition finding, the Competition Commission would simply publish its report. It would not send it to the Secretary of State for a decision. In other words, a report will not reach the Secretary of State if there has been no adverse finding by the Competition Commission.

Andrew Lansley: We seem to be touching on the technical point that arose under clause 133, and it is precisely what I am concerned about. If there were a national security consideration and it had no competition effects, surely the Secretary of State would want to retain a reserve power and take some remedy through a market investigation to deal with the relevant public interest effect. Unlike some of our other arguments, I acknowledge that a public interest may need to be protected. If no competition effect arises, the Secretary of State has no power to determine the public interest consideration.

Melanie Johnson: The hon. Gentleman is encouraging me to write to him further. There will be a hierarchy for taking into account competition, public interest, customer benefits and the regulated statutory functions. If the Secretary of State accepts a Competition Commission analysis of competition, she will choose the remedy in the light of all the relevant considerations. I take the hon. Gentleman's point that, supposing no adverse effects were identified, how would we meet the possible public interest requirement. I undertake to write to him about that.

Ken Purchase: The matter is becoming confusing and it is right that we should understand it properly. Notwithstanding the fact that the Secretary of State may find other reasons, let us deal specifically with security. Even though no competition issues may flow from what the Secretary of State considers a security issue, would not she decide that the security issue overrides all the other considerations?

Melanie Johnson: No. However, given the interest that has been shown in the matter, I still undertake to write to members of the Committee about it.
 Question put and agreed to. 
 Clause 139 ordered to stand part of the Bill. 
 Clauses 140 and 141 ordered to stand part of the Bill.

Clause 142 - Power of veto of Secretary of State

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: My comments echo the type of nasty technical point that my hon. Friend the Member for South Cambridgeshire is prone to make about such matters, and it may be that we need a detailed letter from the Under-Secretary setting out how all the clauses hang together. When we debate clause 145, we shall return to the separate issue of the definition of public interest and so forth; we need to debate that topic more than once.
 I am concerned about the bald title of the clause. Given the complexity and technicalities of the Bill, there must be provision for an interface between what the Secretary of State and the OFT are doing. However, I am alarmed that the Secretary of State will have very wide powers. The OFT may have good reasons for wanting to proceed with particular undertakings that it considers sufficient to sort out problems in particular cases. Why should the OFT be subject to a sweeping power of veto by the Secretary of State? 
 As a general theme in the Bill, we are concerned about the Government's purported aim of taking politicians out of decision-making in this subject area. We broadly support that aim, which should be made abundantly clear, although we believe that it probably already happens in practice. However, on more than one occasion, the Secretary of State has seemed doggedly to want to hang on to some of the powers currently held by politicians. Although I accept the need for a defined interface between the Secretary of State and the OFT, is it necessary for the Secretary of State to retain the wide power of veto?

Jonathan Djanogly: Is there a deadline for the Secretary of State to give consent under the provisions and, if not, why not?

Melanie Johnson: I reassure the hon. Member for Eastbourne that the reason for the provision is that there may be proposed undertakings in lieu of a reference that operate against the public interest. The clause would give the Secretary of State the power to block acceptance of any such undertakings. The hon. Gentleman was right to ask whether such powers were absolutely necessary, but I am sure that he and I could readily agree that there are circumstances in which the Secretary of State would need such powers.

Nigel Waterson: Again, in wrestling with concepts of public interest, it would be useful to us both if the Under-Secretary provided concrete examples of the type of undertaking that would be damaging to the public interest. Why on earth would the OFT
 consider accepting such undertakings in the first place?

Melanie Johnson: It is quite difficult to give examples, because we envisage the powers being used only in rare circumstances; when the OFT seeks undertakings in lieu of reference in a public interest case. We must ensure that the undertakings are not inappropriate in light of a legitimate public interest issue. The nature of undertakings can be tremendously varied, and it would be difficult to give specific examples to illustrate the point. It is likely to be a rare recourse, but it is important to have the provision to ensure that the Bill can do what may sometimes be necessary.

Jonathan Djanogly: Did the Under-Secretary consider my short point about whether there should be a deadline for the Secretary of State to give her consent?

Melanie Johnson: I apologise to the hon. Gentleman for not having responded. There is no deadline or specific time frame but there is a requirement on the Secretary of State to respond as soon as practicable. The Secretary of State also has a duty to act reasonably. Safeguards are, therefore, built in.

Jonathan Djanogly: In such circumstances, would it not be normal to have a time limit?

Melanie Johnson: In many cases in the Bill an assumption is made and, sometimes, spelled out, that the time frame will be as soon as is practicable. That is, apparently, normal provision under administrative law. In this case, that is the right time frame in which to demand a response, as it may be difficult to know which issues might arise. I assure the hon. Gentleman that it is not an attempt to elongate the process. I share his concern that the process should be transparent and timely throughout.
 Question put and agreed to. 
 Clause 142 ordered to stand part of the Bill.

Clause 143 - Further interaction of intervention notices with general procedure

This is a short point. Subsection (1) states: 
"Where an intervention notice ... comes into force in relation to a market investigation reference, sections 126 and 128 to 130 shall cease to apply in relation to that reference."

Melanie Johnson: This relates to our earlier discussion of amendments Nos. 304, 308 and 309. I am grateful to the hon. Gentleman for having raised these issues, and I do not want to shock him too much by saying again that our intention is that the definitions in clause 126 should apply to public interest cases. I would welcome the opportunity to study the points involved further, with a view to introducing amendments to deal with the issues raised on Report. Again, I reassure the hon. Gentleman that we should like to take away the amendment and come back with appropriate amendments. I therefore ask him to withdraw the amendment.

Nigel Waterson: This is a red-letter day. On that basis, I am all too willing again to beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 143 ordered to stand part of the Bill. 
 Clause 144 ordered to stand part of the Bill.

Clause 145 - Specified considerations: Part 4

Variety is the spice of life. I shall not divert the Committee long on the amendment, which is narrow but significant and raises interesting and important issues. 
 The amendment would make sport a second public interest issue that the Secretary of State could specify in serving an intervention notice into a market investigation by the Competition Commission. Even I would not accept that sport is in the same bracket as national security when it comes to the public interest, but it plays a vital role in Britain's social fabric, which is why it needs safeguarding. Why is it necessary? Main sports were invented in this country not originally for profit-making enterprises, but as voluntary and amateur activities for leisure and recreation. In recent years, the influx of vast sums of revenue from broadcasting has brought sports into the purview of the competition authorities. 
 Sport is unique among markets in that the businesses that make up the market—the professional clubs—rely on their competitors to survive. More importantly, they need their competitors to remain healthy and strong. That is what creates a vibrant and buoyant sports league with an uncertainty of outcome and that, in turn, is what is of interest to the public. It is fair to say that sports leagues are perhaps the most blatant form of public cartels in this country. Furthermore, they prevent, restrict and distort competition. 
 Sports leagues need to maintain competitive balance and, to do that, they need to operate internal rules and practices, such as transfer fees and the collective selling of marketing and 
 broadcasting rights. In recent years, the FIFA transfer system has come into conflict with employment legislation and the collective selling of sports rights continues to conflict with competition legislation not only in this country, but in Europe. 
 Collective selling has two distinct functions. First, it allows for resources to be shared out equally among the members of the league, thereby preventing the emergence of dominant clubs. Secondly, it provides for resources to be top-sliced and reinvested in the grass roots of sports or in wider public interests, such as the rebuilding of stadiums following the Hillsborough disaster. The rules have never before troubled the competition authorities, but most relevant to the amendment is the OFT's claim, brought under the restrictive trade practices legislation three years ago, against the Football Association premier league and its selling of collective broadcasting rights. That was one of the OFT's most high-profile failures to date. 
 Under that legislation, there were seven gateways through which a restrictive agreement could pass and be allowed to stand. One was if it brought significant and substantial benefits to the public, and it was on those grounds that the premier league argued its case. The judge in the restrictive practices court accepted the arguments advanced by the premier league and, as a result, the money that has been generated from that deal is now partly being pumped into grassroots football in this country. If the OFT had won the case, the consequences for all organised sport would have been disastrous. All other collectively negotiated television deals would have collapsed as there would have been no legal basis for them to continue. It would have put all the power in the hands of the broadcasters and the very big clubs, at the expense of the smaller and weaker clubs. 
 The premier league's argument was successful because of the wide definitions of the public interest that were allowed under the restrictive practices legislation. While I accept that those wide definitions needed to be narrowed—I welcome the Bill in that it narrows the tests—if the same case were brought today by the OFT against the premier league, I am confident that it would be upheld and that the collective deals would be struck down. That would pave the way for the individual selling of rights by clubs. 
 In specifying sports, I am not opening the Bill to wider abuse, nor do I want to give the sporting bodies in this country carte blanche to carry on without regard to the public interest. The amendment would give the Secretary of State the ability to question whether the proceeds of any collective deals were being used for purposes for the wider public good. Such an approach would be entirely consistent with United States anti-trust legislation. In the early 1960, a US court ruled that the collective sale of television rights by sporting leagues violated US anti-trust law. Congress acted quickly to grant an exemption to such sales under the Sports Broadcasting Act 1961. Today, 
 that exemption from anti-trust law exists for American football, baseball, basketball and hockey. 
 In conclusion, I pose a question; is the threat that I have raised real? It is common knowledge in sporting circles that the European Commission is about to launch a formal investigation into the latest premier league broadcasting contract, and that the Commission favours the selling of rights by individual sports clubs, rather than collective deals. However, I believe that once the genie is out of the bottle, and individual selling becomes the norm, the fabric and structures of sport will unravel. 
 This is a probing amendment. I have tabled it to find out where the Government's thinking has reached on the vexed and controversial issue of competition policy and sport. However, it is non-controversial, as it leaves the discretion entirely in the hands of the Secretary of State, although it also enshrines in British law an expectation that the application of competition law to sport will be carefully handled.

Mark Field: Tempting though it is to lead this matter to a Division, and thereby to end a highly respected young political career, I am unsure whether we would support the idea that sport should be included in the list. Although I—like the hon. Member for Leigh (Andy Burnham)—am a keen sports fan, I do not think that sport should be seen as closely associated with national security unless the list is made much more exhaustive. However, I do not know whether the Under-Secretary has any thoughts on other areas that might be included.

Melanie Johnson: It is nice of the hon. Gentleman to give my hon. Friend the Member for Leigh a sporting chance, but I am sure that he does not need that.
 It might be helpful to my hon. Friend if I set out the role of the Secretary of State in public interest issues. Markets will be referred only on competition grounds. They have not previously been referred only on competition grounds, as he is aware. There is no scope in the new regime for a market to be referred for any other reason. The purpose of the public interest provisions in relation to market investigations is to ensure that the Secretary of State can review the remedies that the Competition Commission might impose. 
 We believe that, in general, the Competition Commission should address the competition problems that it identifies in the course of a market investigation. Addressing competition problems will drive improvements in the market; it will benefit businesses and consumers. When considering remedies to any adverse effects on competition, the Competition Commission will be able to have regard to the relevant customer benefits, which include increased quality and choice—I reassure my hon. Friend about that. 
 Therefore, we do not believe that anything further is required to safeguard the particular interests of sport, and I do not think that it would be appropriate to specify that topic in the legislation as a public interest consideration—or to go down the path suggested by the hon. Member for Cities of London and Westminster, who is tempting me to add other things to the list. The Competition Commission can and already does take into account the special characteristics of sporting markets, but they are as much about the big-business broadcasting and entertainment markets as they are about sport. It would not be desirable to set a precedent by treating those sectors differently under competition policy. Other sectors would also make claims to be treated as special cases—as the hon. Gentleman's suggestion indicates—and that might go on for some time. 
 This legislation and the Competition Act 1998 replace the provisions on restrictive practices. In market investigations, there is no duty to refer. Where the reference is made, the Competition Commission can take account of customer benefits, including quality. 
 I hope that that reassures my hon. Friend, and that he will not press his amendment to a vote.

Andy Burnham: I thank the Under-Secretary for that reply. I am reassured by her explanation that the Secretary of State retains the discretion to intervene if important public interest issues are at stake. I agree with her that such cases are often brought against sports leagues primarily because the regulators are trying to influence and shape the broadcasting industry. However, sport is often the vehicle for that, and it is sport structures that may suffer when regulators try to achieve that goal.
 The unravelling and breakdown of a broadcasting deal can have a disastrous impact on sport, as we have seen with the collapse of ITV Digital, which will undoubtedly have an effect on football league clubs. I have had some assurance from the Under-Secretary that if sport is ever the subject of investigation by the competition authorities, it will be given a sympathetic hearing. I therefore beg to ask leave to withdraw the amendment. 
 Amendment, by leave, withdrawn. 
 Question proposed, That the clause stand part of the Bill.

Nigel Waterson: I congratulate the hon. Member for Leigh on developing his arguments so carefully, as befits a former special advisor at the Department for Culture, Media and Sport. He has done us all a service because he has reminded us of the dangers lurking in subsection (3). However, we have already debated that subject, so I shall cut to the chase.
 At the moment, when we consider the so-called public interest, we are concerned only with "national security" and we are reminded that we must fall back on the European definition of "public security", which is referred to in subsection (2). 
 In subsection (3), the Secretary of State retains the power to 
"modify this section for the purpose of adding to, removing or amending any consideration which is for the time being specified in this section." 
My thinking is entirely in line with that of the hon. Gentleman. If other factors are going to be added to the important concept of public interest, they should appear in the Bill. We think that it is wrong that the Secretary of State should arrogate to herself the power to add to the list in future, and we tabled an amendment on the subject to an earlier clause. Let us hear what the Under-Secretary might be keen to add to the list, as she is not keen to add sport, and let us hear why she thinks that her Secretary of State should have that power to add to the list instead of having to come back to primary legislation.

Harry Barnes: The hon. Member for Eastbourne is correct that some of what he has said has been debated before. However, the subject has not yet been clarified. No examples or definitions have been given of what could be referred to under subsection (3). The Opposition are worried that a camel will be pushed through the eye of a needle, and that the situation will be different to that indicated.
 In response to amendment No. 376, which my hon. Friend the Member for Leigh tabled, it was suggested that there might be an opening for sport to be included in the clause, but will it be included? I hope that I have correctly understood the philosopher John Locke—my hon. Friend the Member for Hemel Hempstead (Mr. McWalter) will correct me otherwise—who when speaking about secondary and primary qualities of objects said that even if all those qualities were removed, there would still be something there to which colours and other things would adhere. That was the "something I know not what". We have such a something; we do not know how it should be described. Is it to be—as feared by Opposition Members, which would be hawked by myself—something that can be used on wider grounds, or is it an exception that the Committee cannot describe or even think about? We need some understanding between the two sides. I believe that the Government intend it to be a fallback option which might be required for unknown circumstances and which needs to be in the Bill. It will not be anything of the nature suggested by the Opposition or that others would place their hopes in. 
 I quoted earlier from a letter from the Secretary of State to the secretary general of the Trades Union Congress, which confirms that point. It states: 
"The system will however contain a fallback option to consider other public interest matters before a case is referred". 
 That seems to satisfy the interests of the TUC, which is keen to have public interest provisions in the Bill. The letter continues: 
 "although in reality the Government does not envisage that new public interest gateways will be created except in extremely rare circumstances. Our policy is for the vast majority of cases to be considered without ministerial involvement. 
 I understand that mergers do have a wide impact beyond competition concerns, but the focus of our merger regime is to achieve long term economic efficiency." 
The Under-Secretary should be aware that I am not alone in my thinking on the issue. There is genuine concern that issues such as employment, the distribution of industry and exports should be defined in the Bill. There is an opportunity under the clause to do that, and other avenues in the Bill will allow it. Perhaps we should have a comprehensive list of sets of amendments on Report that would ensure public interest—unless Opposition Members can cite examples of some interpretation or definition that they are worried about. People like myself can be content that there are other avenues and back doors that we can use. It would be nice if it were clarified in the legislation beyond peradventure that we have in mind public interest concerns.

Tony McWalter: I shall resist the temptation to engage in a discussion about Locke's contradictory concept of substance, but the focus on subsection (3) is useful. I agree with my hon. Friend the Member for North-East Derbyshire (Mr. Barnes), about the need for examples in this debate. In an earlier discussion, I mentioned an example of a national security issue—that of accepting products that could lead to gross degradation of the biosphere. It may be helpful for the Under-Secretary to focus her thoughts on that. In discussions about genetically modified crops and organisms, those who are of the doomsday school may be quite wrong. However, they may be right, and if they are, admitting materials that might lead to degradation of the biosphere could be regarded as quite strongly against the national interest. Those wishing to import such materials would, in a sense, be prima facie involved in breaching national security. Although we have debated this issue before, it is worth considering whether the framework of law outside the Bill can provide the type of assurances that we need about accepting something as a product.
 Other considerations are taken into account by the framework of law outside the enterprise system and culture. That applies to degradation of the biosphere. 
 Hon. Members will be aware of ways in which competition policy is used by the American Government, who sometimes provide ways of producing products that threaten competitors in a market—banana or sugar producers, for example. Other players in the market may be threatened, not simply with having to liquidate their businesses, but with paying for the competition culture with their lives or with the prospect of curtailing forever their chance of earning a livelihood. 
 There are all sorts of agreements—the Lomé convention, for example—about how we should operate with other countries and treat their work forces. However, it is incumbent on us to pay attention to the wider framework and ensure that we do not end up with a competition policy that is antithetical to our ideas about what constitutes fair competition in the world of commerce.

Melanie Johnson: I have been tempted by my hon. Friends and the Opposition into debating an issue about which there has already been considerable discussion, although I appreciate hon. Members' interest and concern. Subsections (3) and (4) provide a mechanism for amending the list of public interest considerations, but at the risk of upsetting hon. Members on both sides of the political divide—perish the thought—I emphasise that the Government have no current plans to use the power to broaden the scope of the Secretary of State's role in market cases.
 My hon. Friend the Member for North-East Derbyshire, in his Lockean reference, most accurately represented this issue as a thing "we know not what". Like my hon. Friend the Member for Hemel Hempstead, I have a background in philosophy, but I shall not follow up the reference any further. However, the provision is certainly necessary. We have no plans to use the power to broaden the role of the Secretary of State. The reserve power to specify new public interest considerations is a necessary safeguard to ensure that the legislation can be adjusted. That is why it appears in the Bill as it does. I cannot give hon. Members on either side of the Committee any comfort about what the thing in question might be.

Nigel Waterson: The Under-Secretary talks about adjusting the legislation. My inference is that she means that that will have to be done quickly, to deal with an unexpected "we know not what" situation. Surely, national security is the only umbrella under which one can imagine something like that happening. The legislation can always be adjusted by introducing further primary legislation. What reason can there be, other than national security, to change the grounds of the Bill in a great hurry? Presumably that is the point of regulations.

Melanie Johnson: The hon. Gentleman is again trying to persuade me to be more specific. I cannot and will not do so. In my experience, it is not unusual for the Government to be told that a piece of legislation has an outcome, issue or problem, unforeseen and unforeseeable at the time of its introduction, that has arisen since. Because it relates to public interest, it is important for the Secretary of State to have such a power. We do not have a list or any single item to which the clause should apply, but it is important for the provision to be available.

Harry Barnes: My problem with the Locke example—my hon. Friend the Member for Hemel Hempstead pointed out that there might have been some defective reasoning—is that that "something I know not what" does not exist. The matter that is provided for in law will not refer to anything in future, so the provision might as well not be made. I would want it to be something that was a possibility—something that had substance.

Melanie Johnson: I appreciate that my hon. Friend seeks to put substance into the provision. However, by the nature of what is being considered, it is not something of substance. It might well be of great substance in the future; the fact that it is not foreseeable does not mean that it does not exist.

Tony McWalter: I cannot believe that. Post 11 September, we know that operating our markets in such a way as potentially to deny a livelihood and the prospect of life to people from some nation or other poses a threat to our national security. I do not know why my hon. Friend is being so evasive about confronting my examples of what could count as prima facie threats to national security. Hence, there is a prima facie case for considering those matters under subsection (3).

Melanie Johnson: I recognise that my hon. Friend raises issues that are important to the future of the planet, and that the Government should take them on board. However, let me reassure him that I am not trying to be evasive in not specifying something. I am trying to be clear with the Committee that the reason for not specifying something is because it is unforeseeable. We cannot put any further meat on the bones of the matter. I have explained why we think that it is important to public interest considerations that the legislation does not fail to meet some future need. That is why we are including the provision in the Bill.

Vincent Cable: I want to pursue the point a bit further.

Ken Purchase: This could get worse.

Vincent Cable: It could get worse.
 As the Under-Secretary's position rests on the narrow national security definition, will she clarify what she means by national security? The old ideas about national security being a matter of standing armies moving across frontiers have been replaced with a much more fluid view of what is involved. The 
 hon. Member for Hemel Hempstead was right about that. 
 In the United States, where the argument has been well developed in terms not just of competition policy but of trade policy, the idea of national economic security is adduced to justify a wide variety of Government interventions. There is a danger that if the Under-Secretary sticks to the concept of national security, everything from threats to the biosphere to unemployment will be bundled under it. If she intends to take a stand on this narrow definition, will she explain to us what national security means for the purposes of the legislation?

Melanie Johnson: In earlier debates, I did explain that. National security is defined under this clause as it is under clause 56, which governs mergers. It includes defence and other essential public security considerations. I am afraid that I cannot remember whether the hon. Gentleman was present during our earlier debates, but I assure him that a definition of the terms has been placed on the record for the benefit of the Committee.

Nigel Waterson: I do not want to prolong this debate—[Hon. Members: "Sit down then."]—but I will if provoked. I particularly do not want to do so because, as the Under-Secretary rightly reminded us, we had a long debate, with an equally unsatisfactory outcome, on clause 56. She talks about some future need, but is wholly unable, no matter how hard she is pressed from both ends of the political spectrum, to come up with anything that might conceivably amount to such a need.
 I am sure that the Under-Secretary is being open and not evasive, contrary to what her so-called honourable friend the hon. Member for Hemel Hempstead said about her performance. However, the more doughtily she fights her position on the matter, the more suspicious we become. What on earth are we including the provisions for? On the basis of her arguments, every Bill that comes before the House ought to include an escape clause in case some great horror—or benefit, as the hon. Member for North-East Derbyshire might say—has not been envisaged. That is not the way legislation works. We deal with the here and the now. 
 The provision on national security is already very wide and could, in the wrong hands, have a gigantic scope. Why is that not enough? If something were to come up that none of us has ever conceived of, could it not be dealt with quickly by primary legislation? Presumably it would be of such enormity and moment to the whole country that even the Opposition parties would collude in its rapid passage through the House. If I read the Under-Secretary's remarks right, it would have to be of such significance that it would deserve that kind of approach. 
 We are deeply unhappy about the matter. We do not understand why the Under-Secretary is hanging on to the powers set out in subsection (3) with such ferocity when she has not got a clue what they might be needed for. What is this "need" about which she continually talks?

Melanie Johnson: I am grateful to the hon. Gentleman for his suggestion that the Opposition will always collude with the Government in finding time for primary legislation of an urgent nature, although I am not sure that the usual channels on the Labour Benches would agree with that conclusion. Indeed, it is often difficult to find slots for urgent primary legislation, so I have reservations about his assumption.
 If we had a specific example in mind, we would include it in the Bill. It is because we do not have such an example, and because the matter is important and we might want to do something quickly and easily that we are including the provision—for those reasons and no other. Opposition Members can become more suspicious if they wish, but their suspicion is entirely misplaced. The measure is designed to deal solely with the unforeseeable, and I cannot be more specific about what the unforeseeable might contain. 
 Question put and agreed to. 
 Clause 145 ordered to stand part of the Bill. 
 Clauses 146 and 147 ordered to stand part of the Bill.

Clause 148 - Effect of undertakings under section 146

Nigel Waterson: I beg to move amendment No. 311, in page 108, line 1, leave out
`or needs to be varied or superseded'. 
 "false or misleading in a material respect". 
 The whole basis of accepting that undertaking would be negated. Again, we can see the force in that. 
 With all due respect to the draftsmen, it is the weasel words 
 "or needs to be varied or superseded" 
 in subsection (2)(a) that are objectionable. The amendment would remove them, which would limit the OFT's powers to make further investigation references if it had received undertakings that had been complied with. Subject to the obvious 
 exceptions that I mentioned, if an undertaking has been offered, discussed and accepted on those terms, the people offering it should feel reasonably certain that they will not face a further market investigation reference unless they are in some way to blame. Clear examples would be breaches of undertaking or when false information had been provided that had formed the basis of the willingness to accept the undertaking in the first place. 
 I cannot see how the words 
"or needs to be varied or superseded"

Melanie Johnson: I am delighted to inform the hon. Gentleman that he is still on a winning streak, and that the conspiracy view of history is still wrong. I am happy to accept the amendment tabled in his name and that of other Opposition Members.
 The wording of clause 148 has come directly from section 56D of the Fair Trading Act 1973, but on further reflection we cannot see any reason to retain it. It weakens the case for giving undertakings, as there is effectively no protection from reference during the supposed quiet period. Twelve months is not a long time in the context of market investigations, so the OFT would not have long to wait, even if it changed its mind after agreeing to the undertakings. I am therefore content to accept the amendment. 
 Amendment agreed to. 
 Clause 148, as amended, ordered to stand part of the Bill.

Clause 149 - Interim undertakings: part 4

Derek Conway: With this it will be convenient to discuss amendment No. 313, in page 108, line 34, after `reference', insert
`but not any such action which could be beneficial to competition or customers'. 
 Once the investigation is complete and the report has been published, most companies will not want to 
 stand back. They will either want to go to the Competition Appeal Tribunal or take on board the report's implications as far and as fast as they can, then move on. A company would rarely sit back and do nothing, and wait until the OFT loads it with orders. In almost any case, that would not be in the company's interests. The concern with the provision is that the wording could be used to prevent a company moving ahead in a way in which would not be anti-competitive, and which would, in any normal regard, be acceptable. 
 The amendments try to address that by stating that a company should be barred only from taking evasive action, rather than from taking any action at all. Amendment No. 313 goes wider: the question should be not only of the negative—that the company should not evade—but of the extent to which the action concerned would not affect competition, and of whether it were beneficial to customers. For those circumstances, a definition of pre-emptive action should be carved out. The amendments head in the same direction, but amendment No. 313 is slightly wider. I appreciate that they are not of the finest draftsmanship, but I hope that the Under-Secretary accepts my point.

Melanie Johnson: In a market investigation, interim undertakings and orders are available only following the publication of the Competition Commission's report. Their purpose is to prevent the parties from taking action that might prejudice the ability of the Competition Commission to introduce the final remedies identified in the report. The parties may in the interim period want to take steps on their own initiative and to address competition concerns that were identified in the reports. I reassure the hon. Gentleman that interim undertakings and orders would prevent such action only if it were deemed prejudicial. Perhaps such action, although taken in the interests of competition, would undermine the ability of the Competition Commission to implement a remedy that would have an even greater beneficial impact. In such cases, the Competition Commission should be able to introduce an interim order or secure interim undertakings.
 The key point is that action should not be prejudicial to the eventual outcome of the market reference. That clearly covers action that is intended to evade or obstruct. It may also, in the circumstances that I have set out, cover pre-emptive action of a more positive nature, but which if unchecked may not result in the best outcome for competition and consumers. I appreciate the hon. Gentleman's remarks about the nature of his amendments. I hope that they are probing, and that I have reassured him that they are not necessary.

Jonathan Djanogly: Having heard what the Minister has had to say, I am more satisfied about how the wording will be interpreted. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 149 ordered to stand part of the Bill. 
 Clauses 150 and 151 ordered to stand part of the Bill.

Clause 152 - Order-making power where final undertakings not fulfilled: Part 4

Amendment made:No. 194, in page 110, line 5, after `authority' insert `or the OFT'.—[Miss Melanie Johnson.] 
 Clause 152, as amended, ordered to stand part of the Bill. 
 Clauses 153 to 158 ordered to stand part of the Bill.

Clause 159 - Rights to enforce undertakings and orders under this part

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: You probably need a rest from putting the questions, Mr. Conway.
 I have a couple of queries, particularly about subsections (4) and (9), with which I would be grateful if the Under-Secretary dealt, although I would be happy for her to write if that is easier. The clause concerns enforcement of undertakings or orders. Clearly, there has to be a mechanism for enforcement. I am concerned about the wider possibility of those affected by subsection (3), which states: 
"any person who may be affected by a contravention of the undertaking or the order." 
I have three specific questions. First, how closely related to the undertaking would people have to be to be able to claim damages, and do the normal rules of remoteness and so on apply when calculating damages? Secondly, where would they normally be expected to bring those proceedings? I presume that it would be in the commercial court. Thirdly, what measure of damages would normally apply for that sort of claim? Presumably, such claims would be on a tortious basis. I presume that there is a body of law relating to similar breaches and claims under fair trading legislation, which would assist us, and the Under-Secretary, on those questions.

Melanie Johnson: I am grateful to the hon. Gentleman for his points, which I have listened to carefully, and also for his suggestion that I might write to him. I will indeed do so, and give copies to Committee members.
 Question put and agreed to. 
 Clause 159 ordered to stand part of the Bill.

Clause 160 - Regulated markets

Melanie Johnson: I beg to move amendment No. 370, in page 115, line 4, at end insert—
"(ca) modifying networking arrangements (within the meaning given by section 39(1) of the Broadcasting Act 1990 (c.42));".

Melanie Johnson: The Broadcasting Act 1990 contains a power, in section 193, for the Secretary of State to amend networking agreements by order as a result of a merger or a monopoly report under the Fair Trading Act. The Broadcasting Act requires the regional channel 3 licensees to enter into networking arrangements for the purpose of enabling regional channel 3 services, taken as a whole, to be a nationwide system able to compete effectively with other television programme licences provided in the UK. An application for a channel 3 licence must be accompanied by networking arrangement proposals. When an application has been duly made, the Independent Television Commission, the economic regulator for the sector, must send details of the networking proposals to the OFT and must not award a licence unless it appears to the ITC that the proposals are satisfactory.
 The order-making power in section 193 of the Broadcasting Act is similar to the order-making power given to the Secretary of State to amend licences in other regulatory regimes as a result of an FTA report. Schedule 8 to this Bill contains amendments to other sectoral legislation to extend the order-making power to allow the OFT and the Competition Commission to modify licences and to allow that order-making power to be triggered following a report under the powers in the Enterprise Bill, rather than an FTA report. Amendment No. 375 brings the Broadcasting Act regime, which deals with the networking arrangements, into line with the other regulatory statutes. That is because, under the new regime, the OFT and the Competition Commission will be the decision makers in most cases. 
 Amendments Nos. 370 and 371 require both the Secretary of State and the Competition Commission to have regard to the duties of the ITC, as stated in section 2(2) of the Broadcasting Act, when considering amending networking arrangements as a remedy in a market investigation. Parliament has given the ITC those duties, and it is right that the Competition Commission and the Secretary of State, when considering modifying networking arrangements, should act with regard to them. Amendment No. 372 amends the definition of "sectoral regulator" in clause 160 to include the ITC. 
 These sensible amendments will bring the provisions in the Broadcasting Act into line with the new regime. I commend them to the Committee. 
 Amendment agreed to.

Nigel Waterson: I beg to move amendment No. 314, in page 115, line 19, at end insert—
"(k) modifying the conditions of a licence granted under the Wireless Telegraphy Act.". 
I rise only to give the Under-Secretary the opportunity to intervene on me and confirm my growing suspicion: amendment No. 314 may already have been covered by one of the Government amendments that we have just considered. 
"modifying the conditions of a licence granted under the Wireless Telegraphy Act."

Nigel Waterson: That was a spectacular own goal. I shall plough on by saying that the role of the Radiocommunications Agency, and the licences that it issues under the Wireless Telegraphy Act and the associated regulations, are covered neither by the Bill nor by the Government amendments, as the Under-Secretary has been good enough to confirm. I think that the CBI raised the point that the issue is very important in many markets that use electronic information technology. It is not entirely clear why it should not be included in the Bill, but clearly the Under-Secretary has given the matter deep thought, so I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Amendments made: No. 371, in page 115, line 31, at end insert— 
`(ca) in relation to any networking arrangements (within the meaning given by section 39(1) of the Broadcasting Act 1990 (c.42)), the duties of the Independent Television Commission under section 2(2) of that Act;' 
`(fa) the Independent Television Commission;'.—[Miss Melanie Johnson.] 
 Again, this is a short point. It is not clear to us why subsection (9) says that the commission 
"shall not have regard ... to any relevant customer benefits".

Melanie Johnson: Again, I can help the hon. Gentleman. Subsection (9) ensures that the commission must take into account only those issues that fall within the scope of the relevant statutory functions and not the standard set of customer benefits. The amendment gives the Competition Commission discretion to consider customer benefits alongside its duty to take account of regulator statutory functions. A standard set of customer benefits is set out in clause 126.
 The benefits to consumers are defined in terms of lower prices, higher quality and greater choice of goods and services, and are covered in some form in most regulator statutory duties. For example, Oftel has a duty to promote the interests of consumers in respect of price, quality and choice, and a duty to promote research into the development and use of new techniques. Parliament has given the regulator its statutory duties, which must be taken into account when the regulator performs its function. It is right that the Competition Commission should have regard to those duties when considering relevant action. 
 However, although all the regulators have a duty to promote or facilitate effective competition, certain regulators do not have an explicit duty covering each of the standard set of customer benefits. For example, Ofwat has no specific duty relating to innovation. It is likely that in practice the regulator would consider the benefits of innovation in his duty to promote or facilitate effective competition, but it is not always explicit in the statutory functions. 
 The Competition Commission has discretion to take into account the standard set of customer benefits in market investigations in "normal" sectors. In regulated sectors, the discretion to consider customer benefits is replaced by a duty to take into account regulator statutory functions. However, if it is uncertain whether the standard set of customer benefits is included in the regulator statutory functions, we agree with the hon. Gentleman that we need to revisit the wording in subsection (9) to clarify that. Therefore, I agree to consider his amendment further. In the light of my remarks, I hope that the hon. Gentleman will seek to withdraw the amendment.

Nigel Waterson: I am most grateful to the Under-Secretary and I look forward to seeing her amendments later. On that basis, I beg to ask leave to withdraw the amendment.
 Amendment, by leave, withdrawn. 
 Clause 160, as amended, ordered to stand part of the Bill.

Schedule 8 - Certain amendments of sectoral enactments

`(as the case may be)'. 
This is a drafting amendment to ensure consistency with other sectoral legislation. I ask the Committee to support it. 
 Amendment agreed to. 
 Amendment made, No. 375, in page 213, line 32, at end insert— 
`Broadcasting Act 1990 (c. 42) 
 4A For section 193 of the Broadcasting Act 1990 (modification of networking arrangements in consequence of reports under competition legislation) there shall be substituted— 
 "193 Modification of networking arrangements in consequence of competition legislation 
 (1) Where the Office of Fair Trading, the Competition Commission or (as the case may be) the Secretary of State (in this section "the relevant authority") makes a relevant order, the order may also provide for the modification of any networking arrangements to such extent as may appear to the relevant authority to be requisite or expedient for the purpose of giving effect to, or taking account of, any provision made by the order. 
 (2) In subsection (1) "relevant order" means— 
 (a) an order under section 71, 79 or 80 of, or paragraph 5, 10 or 11 of Schedule 6 to, the Enterprise Act 2002 where— 
 (i) one or more than one of the enterprises which have, or may have, ceased to be distinct enterprises was engaged in the provision of programmes for broadcasting in regional Channel 3 services; or 
 (ii) one or more than one of the enterprises which will or may cease to be distinct enterprises is engaged in the provision of such programmes; or 
 (b) an order under section 152 or 153 of that Act where the feature, or combination of features, of the market in the United Kingdom for goods or services which prevents, restricts or distorts competition relates to the provision of programmes for broadcasting in regional Channel 3 services. 
 (3) Expressions used in subsection (2) and in Part 3 or (as the case may be) Part 4 of the Enterprise Act 2002 have the same meanings in that subsection as in that Part. 
 (4) In this section — 
 "networking arrangements" means any such arrangements as are mentioned in section 39(1) above; and 
 "regional Channel 3 service" has the meaning given by section 14(6) above."'.—[Miss Melanie Johnson.] 
 Schedule 8, as amended, agreed to. 
Clause 161 ordered to stand part of the Bill.

Clause 162 - General information duties

Question proposed, That the clause stand part of the Bill.

Nigel Waterson: I have another brief point, which pertains to subsection (2). It is right, practical and necessary that the OFT gives the commission any information in its possession which the commission may reasonably require, as set out in subsection (1)(a), and any other assistance. I am slightly baffled about subsection (2), which seems to assume that the
 commission will not be the best judge of the information that it needs to receive from the OFT, and that the OFT may force on the commission information that it does not want. I am all in favour of belt and braces in drafting, but that seems to be a subsection too far. The commission is best placed to decide what information it needs. It beggars belief that the OFT would want to say, "You should have asked for the following information, so here it is." Can the Under-Secretary explain?

Melanie Johnson: The explanation is simple. The Competition Commission will not necessarily know what information the OFT has. The OFT has a duty to give to the Secretary of State or an appropriate Minister all the information it has that has been requested and which the OFT believes is appropriate. The provision may be needed when the Secretary of State is considering referral of a market to the Competition Commission, and the OFT may have information that has led it to conclude that a market reference is unnecessary. The OFT should then be able to share that information with the Secretary of State, but the Competition Commission will not necessarily know what the OFT has.
 Clause 162 ordered to stand part of the Bill.

Clause 163 - Advice and information: Part 4

Question proposed,That the clause stand part of the Bill.

Jonathan Djanogly: The clause returns to a matter that was discussed earlier under clause 123. It would be helpful if the Under-Secretary gave an update on the publication of general advice. When the matter was last discussed, Opposition Members were concerned that the guidance had not been published with the Bill so that the Committee could consider the situation in the round. It would be helpful if the Under-Secretary updated the Committee on the progress of the guidance.

Melanie Johnson: Advice and information will be available before commencement of the market provisions in the Bill—before 1 May 2003. The OFT and the Competition Commission will want to publish their guidance four months before the new regime is brought into force because that is in line with Government best practice. In addition, both authorities intend to consult on the guidance material. I hope that that reassures the hon. Gentleman.

Jonathan Djanogly: I thank the Under-Secretary, but due to the speed at which she read her brief, I could not go through the dates in my head. Will the guidance be available before Third Reading?

Melanie Johnson: No, it will not. I said that it would be available before 1 May 2003. I cannot prejudice the time scales of the House and another place, but I do not believe that it will be available before Third Reading.

Jonathan Djanogly: Does the Under-Secretary not believe that it would be appropriate and helpful to all concerned if the Committee or the House were able to see the guidance before Third Reading, so that we could consider the nitty-gritty implications before the Bill goes to another place?

Melanie Johnson: There may be issues about consulting in advance of Royal Assent and making an assumption about the passage of the Bill. I hope that it will reach the statute book, but I cannot say that for the reasons given. There will be appropriate
 consultation, it will be published and a proper timetable will be adopted which will enable people to know exactly what is envisaged before commencement of the market provisions. That meets the needs of the case. 
 It being One o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order. 
Adjourned till this day at half-past Four o'clock.